A citizen arrested for DUI usually has the right to choose between taking a breath test or a blood test. There is, of course, a third choice: refuse to take either. The individual can do this, but there are consequences: he will face an increased jail sentence or a longer driverâ€™s license suspension â€” or, in most states, both.

The problem is that some police just wonâ€™t take â€œnoâ€ for an answer. An increasing practice among law enforcement agencies is to simply ignore this third choice and forcefully take blood from the arrestee (although some states have banned this practice). By doing this, they can â€œhave their cake and eat it, tooâ€: blood is obtained for testingâ€“ and the suspect still suffers the heavier sentencing for having refused.

So, just how much â€œforceâ€ will the courts permit? Or looking at this from the legal view, drawing blood is considered a search of the person and, therefore, must be â€œreasonableâ€ under the Fourth Amendment to the U.S. Constitution. Which still leaves the question: What is â€œreasonableâ€ force?

The United States Supreme Court addressed this issue in Rochin v. California (342 U.S. 165), where a drug suspect was unconscious and the police forced open his mouth and pumped his stomach to get drugs. Such conduct is not permissible, the Court said, if it â€œshocks the conscienceâ€. This vague â€œshocks the conscienceâ€ standard â€” if it is a standard â€” was later applied by the Supreme Court in a drunk driving case: The blood, the Court said, must be taken under â€œhumane and medically acceptableâ€ circumstances. Schmerber v. California (384 U.S. 757). [As anyone who has watched certain videotapes knows, California seems to have recurring problems with heavy-handed police.]

Humane and medically acceptable circumstancesâ€¦..Shocks the conscienceâ€¦..Well, letâ€™s take a look at what police and courts in California have decided this all means. In Carleton v. Superior Court (216 Cal.Rptr. 890), the California Court of Appeals was confronted with a case where the arrested citizen was pinned down by six police officers, a needle jammed into him and blood forceably withdrawn. The Court saw nothing wrong with this:

Although this degree of force may approach the brink of excessiveness, it was not excessive. Carletonâ€™s self-induced brief physical restraint before and during the withdrawal of a blood sample is not conscience shocking.

One wonders what it would take to go over that â€œbrinkâ€….Maybe having cops spread-eagle you across the hood of your car along the highway and jamming needles into you themselves? It’s already being done (see my earlier post, “Would You Want a Cop Taking Blood From You?”).

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on Sunday, July 15th, 2007 at 5:13 pm and is filed under Duiblog.
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